Local cases could be affected if U.S. Supreme Court upholds Virginia anti-sodomy law

Posted on Wednesday, July 3, 2013 at 2:43 pm

In March, the Fourth U.S. Circuit Court of Appeals declared in a 2-1 decision that Virginia’s anti-sodomy law (18.2-361), used to prosecute child predators, was unconstitutional.

In 2005, William Scott McDonald was 47 when he was convicted of the “crimes against nature” law, after a bench trial in the circuit court of the City of Colonial Heights. He was charged under this statute for soliciting oral sex from a minor female. It was McDonald’s second offense with a minor.

The court of appeals struck down Virginia’s “crimes against nature” statute based on the 2003 Lawrence v. Texas case, which removed the state of Texas’ anti-sodomy law. It was ruled as an unconstitutional criminalization of Americans’ sexual conduct.

In part of their ruling, the Fourth Circuit noted, Virginia’s General Assembly could pass a specific law to prohibit sodomy between a minor and an adult, but has not done so to date.

According to ThinkProgress, part of the Center for American Progress Action Fund, Cuccinelli opposed a law that would have amended the law to comply with Lawrence, eliminating the provisions dealing with sexual conduct between adults and leaving in place other provisions. The Fourth Circuit’s decision threatens to undo convictions of child predators that were obtained under this law after 2003, according to authorities.

One issue McGuire stresses is that this statute is not about consenting adults and what they do in the privacy of their own homes.

In a statement released by Cuccinelli on June 25, he stated that it is not and cannot be used against consenting adults acting in private.

But the statute doesn’t read that way according to many who have examine it.

In the 18.2-361 statute, it states in section A, that non-reproductive sex is against the law and a person in Virginia can be found guilty of a Class 6 felony. It states “if any person,” with no mention of children.

Section B of the statute does deal with children, but seems to deal more with incest. The section is based on a familial connection, such as father and daughter, brother or sister, in regards to the non-reproductive sex.

For decades anti-sodomy laws have been considered unconstitutional under the due process clause of the 14th Amendment.

On June 25, Attorney General Kenneth Cuccinelli prepared a 296-page petition asking the U.S. Supreme Court to uphold Virginia’s anti-sodomy law.

Cuccinelli argued that a lower court misinterpreted the scope of the justices’ 2003 decision invalidating a similar law in Texas.

“It’s a very bizarre ruling and you know, I would be surprised if the Supreme Court didn’t overturn it,” Louisa County Commonwealth’s Attorney Rusty McGuire said.

McGuire said the question that concerns him more is what happens to the cases that they have prosecuted.

If the Supreme Court upholds the Fourth Circuit’s ruling, another question that is raised will be what happens to the statutes that refer back to the anti-sodomy statute? Will they no longer be valid as well?

Virginia’s statutes to protect children against predators are so intertwined with the anti-sodomy law of 18.2-361, so, it stands to question, if 18.2-361 is bad, does that make the other statutes relating to it bad as well?

“The question is, since it says “the child,” does that somehow change it or does it not?” McGuire asked.

Read the rest of the story in The Central Virginian’s July 4 edition.

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